AGRUSA v. TOWN OF LIBERTY (2002)

Appeal from an order of the Supreme Court (Ledina, J.), entered December 18, 2000 in Sullivan County, which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiffs commenced this action to recover for personal injuries they sustained when their car slid down an icy hill on Benton Hollow Road in the Town of Liberty, Sullivan County.   Supreme Court granted defendant's motion for summary judgment dismissing the action for failure to comply with the prior written notice requirements of Town Law § 65-a.   Plaintiffs appeal, contending that defendant affirmatively created the dangerous condition and knew it had done so.   We cannot agree.

 “It is axiomatic that a municipality cannot be held liable for a dangerous condition or defect on one of its roadways unless it had prior written notice of such condition or defect as required by the municipality's notice statute * * *, except where the municipality affirmatively created the dangerous condition or defect * * * ” (Lugo v. County of Essex, 260 A.D.2d 711, 712, 687 N.Y.S.2d 475 [citations omitted];  see, Frullo v. Incorporated Vil. of Rockville Centre, 274 A.D.2d 499, 499, 711 N.Y.S.2d 185).   While conceding the lack of prior written notice here, plaintiffs assert that the action should not have been dismissed because defendant induced them to continue traveling along the roadway by sanding to the crest of the hill, but not the icy hill itself.   However, defendant's action in partially sanding the roadway does not avoid the statutory prior notice requirement because it was the failure to sand the hill that caused the accident. Such an act of omission does not constitute affirmative negligence excusing noncompliance with the prior notice requirement (see, Frullo v. Incorporated Vil. of Rockville Centre, supra, at 500, 711 N.Y.S.2d 185;  Lugo v. County of Essex, supra, at 712, 687 N.Y.S.2d 475;  Buccellato v. County of Nassau, 158 A.D.2d 440, 442, 550 N.Y.S.2d 906, lv. denied 76 N.Y.2d 703, 559 N.Y.S.2d 982, 559 N.E.2d 676).

 Moreover, plaintiffs have failed to establish that defendant's employee who sanded the roadway knew or should have known of the dangerous condition due to the nature of his job.   This argument, though made in plaintiffs' brief, is unsupported in the record.   There is no affidavit, deposition testimony or other record evidence establishing anything about the actions or knowledge of defendant's employees (see, Ughetta v. Barile, 210 A.D.2d 562, 564, 619 N.Y.S.2d 805, lv. denied 85 N.Y.2d 805, 626 N.Y.S.2d 756, 650 N.E.2d 415;  Matter of D.B.S. Realty v. New York State Dept. of Envtl. Conservation, 201 A.D.2d 168, 173, 615 N.Y.S.2d 484).

ORDERED that the order is affirmed, without costs.

ROSE, J.

MERCURE, J.P., CREW III, SPAIN and CARPINELLO, JJ., concur.